forethought now can save headaches later.
by marc rosenberg
the rosenberg practice management library
a partner agreement can cover a lot of ground.
more: 12 basics of partner agreements | 10 merger hiccups for partners | mandatory retirement: pros and cons (and is it legal?) | deciding how to allocate partner income | making partner: today’s 15 essential skills and traits | how to specify managing partner duties | ownership percentage and capital accounts | 5 key reasons to have a partner agreement
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in this post, we’ll cover eight miscellaneous provisions you might include:
- when partners withdraw or retire, does this end their liability to the firm?
- physical exams
- if the firm is sold, how are the sales proceeds distributed?
- clawback
- should partners be required to submit their 1040s to the managing partner?
- social media
- part-time partners
- practice continuation agreements (pcas)
when partners withdraw or retire, does this end their liability to the firm?
it depends what the firm’s partnership agreement says.
- the office lease. if a partner withdraws and takes clients and/or staff, the firm may no longer need all the space that the firm was renting. in these cases, it’s very common for withdrawn partners to remain liable for part of the unexpired portion of the office lease. some firms do the same regarding expelled partners. this liability does not continue beyond termination in the cases of retirement, death and disability.
- liability claims. in the cases of acts committed by withdrawn or expelled partners that result in malpractice, fraud and other claims against the firm and related expenses, the terminated partners remain liable for these claims. this liability does not continue beyond termination in the cases of retirement, death and disability.
physical exams
some firms require their partners to take periodic physical exams, with the results given to the managing partner. partners are valuable assets of the firm, so it’s in the firm’s best interest for them to maintain good health.
if the firm is sold, how are the proceeds distributed?
hundreds of firms are sold or merged into larger firms every year. this section of the partner agreement addresses these cases. there is no mystery in how sales proceeds are distributed in the case of a sole practitioner sale. so this section deals only with sales and mergers of multipartner firms.
sales. a firm is sold for cash, paid over a certain number of years, generally commencing in the first year after a sale and continuing for a fixed period of time, often five or fewer years. the seller’s owners are almost always retirement-minded and very close to or at a traditional retirement age.
the proceeds should be distributed to the owners based on their relative vested retirement benefits, both accrual basis capital and retirement benefits. firms should avoid using ownership percentage to distribute the sales proceeds because it is almost always unfair.
mergers. although solidifying the partners’ exit strategy is often a sought-after benefit of smaller firms, another major goal is improving the firm’s growth and profitability by combining with a larger and better managed firm. in true mergers, the seller’s owners are usually quite a bit younger than traditional retirement age and plan to continue working for quite a few years after the merger.
instead of receiving cash within a fixed period of time, all or most of the seller’s partners become partners in the buyer. they are paid for the value of their firm when they retire by participating in the buyer’s partner retirement/buyout plan.
clawback
this section applies to sales in which (a) the sales price to the seller is higher than the terms of the seller’s internal retirement/buyout plan and (b) the firm has retired partners with unpaid retirement benefits at the time of the sale.
example: a firm’s buyout plan calls for valuation of the firm’s goodwill at 80 percent of revenue. the firm sells for 100 percent times revenue.
some firms feel that in this scenario, the retired partners should be entitled to receive higher buyout payments. this is referred to as a “clawback.”
a common clawback provision in partner agreements is:
if the sale or merger is within five years of a partner’s retiring, the retiring partner’s buyout arrangement should be retroactively changed to be consistent with what the current partners will receive. the impact should be graduated as follows:
- a partner who retired within one year before the sale or merger receives 100 percent of what the other partners receive.
- a partner who retired within two years of the sale or merger receives 80 percent.
- three years, 60 percent.
- four years, 40 percent.
- five years, 20 percent.
- six or more years, no clawback.
should partners submit their 1040s to the managing partner?
safeguarding the assets of the firm is an important duty of the managing partner. some of the firm’s most valuable assets are intangible: the client base, staff and true goodwill. unlike the hard assets – cash, wip, receivables and fixed assets – intangible assets are more susceptible to loss by immoral, unethical or fraudulent acts of the partners.
one tactic some firms use to protect against partners jeopardizing the firm’s assets is to require partners to maintain a healthy personal financial status. the logic is that if partners’ personal finances are unstable and vulnerable, they may be tempted to make decisions related to their clients and in other areas that benefit them personally but put the firm at great risk.
one way to protect against partners committing improper acts is to require them to submit their 1040s and perhaps other personal financial information to the mp each year.
social media
this section on social media is excerpted from a blog post by attorney peter fontaine.
it is axiomatic that the only true assets of any accounting firm are its clients and its people. these relationships are typically protected through a legal agreement between the firm and its people. known as restrictive covenants (or, colloquially, as “non-competes”), under these contracts present and former partners and employees are prohibited from soliciting or serving firm clients, and soliciting or hiring firm employees.
with this in mind, let’s look at a number of social media-related scenarios.
firm’s social media resources
some personnel create social media accounts and online persona largely independent of their firms. facebook, linkedin and twitter are some of the most common platforms for creating one’s social media presence. as a result, there are valuable relationships developed and sustained by the partner or employee that may be outside of the reach of the firm, and its legitimate and protectable business interests. the recommended solution to this uncertainty is a partnership or employment agreement that very clearly spells out the rights of the firm and its personnel in the social media space.
social media contact after employment
in the old days, word of mouth about job changes took a lot longer to get around. today, most partners and employees update their social media information immediately after they have departed their prior firm. in addition, they retain their connections, including former and potential client contacts. generally speaking, former partners and employees can remain connected with or create new connections with former and prospective clients, provided that they do not actively or directly solicit those clients. the obvious question is what constitutes solicitation.
there is not much question that a statement such as “i am so happy i finally left the xyz firm. i wish all of my former clients and coworkers would join me at the abc firm!” would be considered a direct solicitation, violating most restrictive covenants. however, a posting that “things are great, i love my new coworkers and abc is a great firm” is likely to be viewed as a general update and not targeting any former colleagues and clients.
social media content marketing and client inquiries
if the former partner or employee recycles content produced from their former firm, there is a potential copyright infringement issue.
one of the inevitable results of social media content marketing is the contact initiated by a former client seeking to replace their existing accounting firm. well-drafted covenants may ease this problem.
tips for firms
- the single most effective way that firms can increase the enforceability of post-employment restrictions are provisions in their partnership and employment agreements that are carefully crafted and specifically address social media, including the use of firm-owned content. these provisions should be tightly drawn and not overly restrictive, otherwise they fail.
- the importance of strong confidentiality provisions generally, particularly those noting the confidentiality of contact information, cannot be overemphasized. confidential information is universally recognized as a protectable business interest.
part-time partners
your agreement should provide for part-time partners. how this is presented in the agreement is for your attorney to decide.
practice continuation agreements (pcas)
practice continuation agreements or pcas mostly apply to sole practitioners. solos’ practices are highly vulnerable to their own death or disability, whether temporary or permanent. a pca is sort of an insurance policy for solos because it provides for an orderly transfer, either temporarily or permanently, of their practice to a larger firm, at predetermined deal terms.
pcas are a strong nominee for the aspect of cpa firm practice management that sounds entirely logical and smart, but in practice, very few firms have them in place because they are simply impractical.
there are at least three main roadblocks from the view of the buyer:
- negotiating a pca requires almost as much work as buying a firm. buyers simply aren’t willing to put in the time and effort to negotiate a pca that may never be exercised or may be invoked many years in the future. their sentiment: “forget about a pca and let’s merge.”
- taking over a firm under a pca is not as simple as it sounds. few buyers are willing to sign a pca, file it away and wait years to intervene. buyers are anxious that one day, without warning, they will be informed that the solo needs the buyer to take over. challenges to busy buyers include:
- do i have a key to the office?
- who are the clients?
- what work is in process or scheduled in the future?
- solo uses different software from ours.
- what about passwords?
- if the solo has staff, have they been trained appropriately, not only in technical work but in processes and standards?
- solo uses different work processes and workpaper formats than ours.
- related to #2 above, most buyers are very busy firms with very busy partners who are not sitting around twiddling their thumbs. the news that a pca must be invoked never comes at a good time for the buyer. the buyer’s partners are informed that they must suddenly take over the solo’s practice at a point when they simply don’t have the time.
after reading the above, if you are still interested in pcas, a source for guidance is the aicpa’s “practice continuation agreements,” written by john a. eads.